The loophole that let the church shooter buy a gun — and the bill that aims to close it

A law enforcement officer helps a man change a flag to half-staff near the scene of a shooting at the First Baptist Church of Sutherland Springs to honor victims, Nov. 6, 2017, in Sutherland Springs, Texas. (Photo: Eric Gay/AP)

Just two days after the horrific mass murder in a Texas church Sunday, Sens. Jeff Flake, R-Ariz., and Martin Heinrich, D-N.M., introduced legislation to “close the background check loophole exploited by the Sutherland Springs, Texas, shooter.”

Their bill, the bipartisan Domestic Violence Loophole Closure Act, is intended to “ensure that any individual convicted of domestic violence — whether it is in criminal or military court – cannot legally purchase a firearm,” the two senators said. It immediately received praise from the pro-gun-control group Moms Demand Action and Everytown for Gun Safety, which pointed to its own analysis of FBI data and media reports from every mass shooting between January 2009 and December 2016, finding that “54 percent of mass shootings are related to domestic violence or family abuse.”

The link between domestic abuse and gun violence has been well documented, and long before Devin P. Kelley opened fire on a small Baptist church in Sutherland Springs, killing at least 26 people and injuring several more, federal restrictions were already in place to ensure that convicted perpetrators of domestic violence do not have access to guns. But in this case, they didn’t work.

The federal Domestic Violence Offender Gun Ban, better known as the Lautenberg Amendment, grew out of efforts to strengthen the Gun Control Act of 1968 by expanding the government’s tools to keep guns out of the hands of dangerous individuals.

The Brady Handgun Violence Prevention Act, which became law in 1993, generally banned convicted felons from owning firearms.

In 1994, Congress passed an amendment to the Gun Control Act prohibiting anyone subject to a restraining order from obtaining a firearm. But once the order was lifted or expired, the ban on gun ownership was lifted as well. That loophole prompted Lautenberg in 1996 to propose a broader amendment, which sought to ban anyone who’d ever been convicted of a domestic violence offense, even a misdemeanor, from buying or owning a gun.

The act was opposed by the National Rifle Association, which argued, according to an article in the Associated Press at the time, that “the proposal denies the constitutional rights of those convicted of misdemeanors. The organization said legislators should make domestic abuse a felony if they really want to stop violence.”

But Lautenberg and his allies objected that in most states, domestic violence cases are either charged as a misdemeanor or reduced to one in a plea agreement. Years later, Lautenberg, who died in 2013, would tout the law as “plain and simple: If you are convicted of assaulting your wife or beating your child, we are not going to allow you to arm yourself with a gun.”

Lautenberg’s amendment passed with near-unanimous support and was signed by President Bill Clinton in 1997. It wasn’t until after its passage, though, that it began to really draw scrutiny — particularly from the military and law enforcement communities.

Sen. Frank Lautenberg, D-N.J., center, leads a news conference on Capitol Hill in Washington, July 24, 2012, to criticize the sale of high-capacity magazines for assault rifles that are sold to the public. He is joined by Sen. Robert Menendez, D-N.J., left, and Rep. Carolyn McCarthy, D-N.Y. (Photo: J. Scott Applewhite/AP)

Prior to Lautenberg, federal gun laws exempted police officers and military personnel — even those with felony convictions — under the “public interest exemption.” Lautenberg, however, included no such exemption, creating what Alison J. Nathan, now a U.S. District Court judge for the Southern District of New York, described as “a felon-misdemeanant anomaly.”

Nathan wrote in the Cornell Law Review in March 2000 that “police and military personnel with felony convictions of any kind are permitted, via the public interest exception, to possess weapons, while under the Lautenberg Amendment those with domestic violence misdemeanor convictions are not.” Rep. Bart Stupak, D-Mich., with the backing of the National Association of Police Organizations and the Fraternal Order of Police, proposed a bill to add a public interest exemption to the Lautenberg Amendment. The bill failed, but in succeeding years, law enforcement organizations and individual officers mounted a series of legal challenges to Lautenberg.

“Police and military members argue that the gun control provisions should exclude them because enforcement will result in the firing or dismissal of a substantial number of officers and soldiers,” Nathan wrote in 2000. “However, according to advocates of the Lautenberg Amendment, this argument merely suggests that a large number of police and military are committing acts of domestic violence.”

In case after case, federal judges ruled that the amendment does not violate police officers’ constitutional rights to equal protection under the law, nor does it infringe upon their Second Amendment right to bear arms. Challenges to the Lautenberg Amendment have also come from outside the law enforcement world. In 2016, the Supreme Court reaffirmed the amendment in a case brought by two civilian men from Maine, who argued that they should not be prohibited from owning guns because of misdemeanor convictions for acts of domestic violence they’d committed “recklessly,” or in the heat of the moment, rather than intentionally. The court ruled that “reckless” or not, all assaults resulting in a domestic violence misdemeanor are subject to the federal Domestic Violence Offender Gun Ban.

A memorial is seen at the site of the shooting at the First Baptist Church of Sutherland Springs, Texas, Nov. 7, 2017. (Photo: Jonathan Bachman/Reuters)

And yet, after withstanding all these challenges over two decades, the Lautenberg Amendment failed to prevent Kelley — who had a court-martial conviction for assaulting his then-wife and infant stepson while he was stationed at Holloman Air Force Base in New Mexico — from obtaining at least two assault rifles and perpetrating one of the worst mass shootings in modern history.

The Air Force has admitted that it failed to properly report Kelley’s 2012 conviction. But Flake and Heinrich argue that Kelley’s ability to pass more than one background check in order to purchase guns as recently as this year is indicative of a troubling loophole in the system: the military, unlike civilian courts, doesn’t recognize domestic abuse as a separate category of crime.

“Currently, the Uniform Code of Military Justice does not have a specific charge of domestic violence, instead charging such cases as general assault,” read a statement released by Flake and Heinrich Tuesday. “This can complicate the enforcement of the domestic-violence ban on gun purchases, as happened with the shooter responsible for the deaths of 26 people in Sutherland Springs, Texas, this week, whose crime of domestic violence did not disqualify him from purchasing a firearm.”

The statement went on to highlight part of the most up-to-date records index from the FBI’s Criminal Justice Information Services Division’s National Instant Criminal Background Check System (NICS), stating, “Despite the Lautenberg amendment’s intentions, since the NICS database was modernized in 2007, only one case of a misdemeanor crime of domestic violence conviction has been reported” by the U.S. Department of Defense (PDF).

Graphic: Yahoo News, AP

The Flake-Heinrich proposal has already received some initial pushback from conservatives who argue that it was simply the Air Force’s error, not a major loophole, that allowed Kelley to slip through the cracks.

But Gary Barthel, a retired U.S. Marine and attorney at the Military Law Center in San Diego who’s written about the implications of the Lautenberg Amendment on members of the military, told Yahoo News that he thinks adding a specific category for domestic violence to Article 128 of the Uniform Code of Military Justice, which broadly covers assault, is “a good idea.”

Not only would such a categorization “accurately label the type of assault the individual was convicted of,” but, Barthel said, “it would promote more accurate reporting and would ensure the requirements of the Lautenberg Amendment are met.”

“Of course,” he added, “the reporting requirements and the enforcement of the Lautenberg Amendment are only effective if someone actually makes the required report.”